Boyd v. Logan Jones Dry Goods Co.
| Decision Date | 21 April 1937 |
| Docket Number | 34354 |
| Citation | 104 S.W.2d 348,340 Mo. 1100 |
| Parties | Ida Boyd, Appellant, v. Logan Jones Dry Goods Company, a Corporation |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 340 Mo. 1100 at 1108.
Appeal from Jackson Circuit Court; Hon. D. A. Brown, Judge.
Affirmed.
Barnett & Coolidge and Thomas & Flora for appellant.
(1) This action, having been instituted within one year after plaintiff suffered an involuntary nonsuit of a former suit of the same issue which was filed within the statutory period for the institution of such an action, is not barred by any expiration of that original statutory period. Sec. 3266, R S. 1929; Clark v. Railroad Co., 219 Mo. 524, 118 S.W. 40; Mason v. Railroad Co., 226 Mo. 212, 125 S.W. 1128; Chandler v. Railroad Co., 251 Mo. 592 158 S.W. 35; State ex rel. v. Regent Laundry, 196 Mo.App. 627, 190 S.W. 951; Suess v. Motz, 220 Mo.App. 32, 285 S.W. 775; Frick v. Ins. Co., 223 S.W. 643; Packard v. Railroad Co., 181 Mo. 421, 80 S.W. 951. (2) The presumption abides with the plaintiff that the deceased was exercising due care for his own safety. Buesching v. Gaslight Co., 73 Mo. 219; Soeder v. Ry. Co., 100 Mo. 673, 13 S.W. 715; Unrein v. Okla. Hide Co., 295 Mo. 353, 244 S.W. 924; Cech v. Mallinckrodt Chem. Co., 20 S.W.2d 511; Andres v. Cox, 23 S.W.2d 1069; Sing v. Ry. Co., 30 S.W.2d 41; Pryor v. Payne, 304 Mo. 560, 263 S.W. 982; 17 C. J., p. 1304, sec. 167. (3) Evidence that other parties had prevously stumbled and fallen at the same diagonal step and that such fact was known to the defendant at the time of the accident, is admissible for the purpose of showing that such step was dangerous and that defendant was negligent in continuing to maintain said condition. District of Columbia v. Arms, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618; Charlton v. Railroad Co., 200 Mo. 413, 98 S.W. 538; Hebenheimer v. St. Louis, 269 Mo. 92, 189 S.W. 1183; McGinnis v. R. M. Rigby Ptg. Co., 122 Mo.App. 227, 99 S.W. 8; Hoover v. Ry. Co., 16 S.W. 480; Golden v. Clinton, 54 Mo.App. 100; Campbell v. Ry. Co., 121 Mo. 340, 25 S.W. 936; Mathews v. Ry. Co., 142 Mo. 645, 44 S.W. 802; Golden v. Ry. Co., 84 Mo.App. 59; 22 C. J., p. 751, sec. 840; 2 Jones on Evidence, sec. 680. (4) It was within the province of the jury to say whether any negligent maintenance of that diagonal step was the proximate cause of the deceased's fall and injuries. Leeright v. Ahrens, 60 Mo.App. 120; Buesching v. St. L. Gaslight Co., 73 Mo. 219; Kattelmann v. Fire Assn., 79 Mo.App. 452; Eichholz v. Poe, 217 S.W. 284; Owens v. Moberly Oil Co., 245 S.W. 371; Stratton v. Barnum, 263 S.W. 477; Soeder v. Ry. Co., 100 Mo. 673, 13 S.W. 715; State ex rel. v. Haid, 28 S.W.2d 97; Daly v. Pryor, 197 Mo.App. 583, 198 S.W. 91; Helton v. Hawkins, 290 S.W. 95; Cech v. Mallinckrodt Chem. Co., 20 S.W.2d 509; Sing v. Railroad Co., 30 S.W.2d 41; 17 C. J., p. 1205, sec. 56; Chapman v. Bimel-Ashcroft Mfg. Co., 263 S.W. 996; Powell v. Railroad Co., 255 Mo. 420, 164 S.W. 628; Sharp v. Railroad Co., 213 Mo. 430, 111 S.W. 1157; Wheeler v. Fid. & Cas. Co. of N. Y., 251 S.W. 929; Fetter v. Fid. & Cas. Co., 174 Mo. 268, 73 S.W. 595; Burt v. Nichols, 264 Mo. 1, 173 S.W. 685.
Harris & Koontz for respondent.
(1) The cause having been tried and determined on the 19th day of May, 1931, during the regular May Term, 1931, of the Circuit Court of Jackson County, Missouri, and the motion during such term filed, having been overruled during the regular May Term, 1931, of said court, and such term having expired, the circuit court was without jurisdiction to enter judgment in said cause during the September Term, 1934, of said court. Hyde v. Curling, 10 Mo. 359; Turner v. Christy, 50 Mo. 60; State v. Jeffors, 64 Mo. 376; Hansbrough v. Fudge, 80 Mo. 307; Young v. Young, 165 Mo. 624; Dahlin v. Commission, 262 S.W. 420; State ex rel. v. Trimble, 247 S.W. 187; State ex rel. v. Campagnie, 274 S.W. 758; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685; Bowles v. Troll, 262 Mo. 377; In re Wilhelmina Drainage Dist., 280 Mo. 1. (2) This appeal must be dismissed because it does not appear that the nonsuit taken by the plaintiff was an involuntary nonsuit within the meaning of such term as determined by the courts of this State. Kane v. Kaysing Iron Works, 89 S.W.2d 532; Owens v. Washington Fid. Natl. Ins. Co., 85 S.W.2d 193. (3) The court properly sustained the demurrer to the evidence offered by the defendant, as there was no evidence shown that the defendant was in anywise negligent in the construction of the steps, or that the deceased fell by reason of any condition in the step or any condition surrounding the step, and because the statement of the deceased himself clearly shows that he did not fall by reason of any defective construction or condition surrounding the step. Oakley v. Richards, 204 S.W. 505; Peck v. Yoho Amusement Co., 195 S.W. 1033; Mullen v. Sensenbrenner, 260 S.W. 982; Belsky v. Stare, 121 N.Y.S. 321; Main v. Lehman, 243 S.W. 91.
Hyde, C. Ferguson and Bradley, CC., concur.
This is an action for damages for the death of plaintiff's husband alleged to have been caused by defendant's negligence. The court sustained a demurrer to plaintiff's evidence and plaintiff, after taking an involuntary nonsuit and unsuccessfully moving to set it aside, has appealed from the final judgment of dismissal. A previous trial was also ended by a nonsuit.
A premature appeal heretofore taken by plaintiff was dismissed. [Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W.2d 598.] It is now contended that the case ended with the term at which the motion to set aside the nonsuit was overruled and ordinarily it would be. [Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447.] This is because under Section 3266, Revised Statutes 1929, a plaintiff in a wrongful death case has the right to commence a new action within one year after nonsuit. [See, also, Sec. 874 and Sec. 960, R. S. 1929.] However, the record here shows that the court at that term (which was the trial term) ordered a judgment of nonsuit entered, but that none was in fact entered. Plaintiff had the right of appeal from a final judgment of dismissal, and could not do so until one was entered. The court's order, not being acted on, went over to the next term, so that the judgment ordered could thereafter be entered. Otherwise, plaintiff's right to appeal would be defeated by refusal or failure to obey the court's order to enter the final judgment at the proper time. Under these circumstances, since there was no judgment entered at the trial term from which plaintiff could appeal, we hold that the court did have authority at a subsequent term to enforce its order and have entered a final judgment of dismissal from which plaintiff could then appeal. [See Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810; Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W.2d 598; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614.] It is further contended that the nonsuit taken was voluntary, but the cases upon which defendant relies have been overruled. [See Boonville National Bank v. Thompson, 339 Mo. 1049, 99 S.W.2d 93; Arp v. Rogers (Mo.), 99 S.W.2d 103.]
The demurrer was sustained at the close of plaintiff's case so the only evidence is that offered by plaintiff. This evidence, considered most favorably to plaintiff's contentions, tended to show the facts hereinafter stated. Mr. Boyd, seventy-six years old, died from shock affecting his heart after a fall in defendant's store which broke his hip. According to medical testimony, he was senile, had hardening of the arteries, and a heart inflammation. About four years before his death he had fallen in the street while trying to catch a street car and fractured his kneecap. He had recovered from this so that he walked without a cane or crutch and had been operating a small grocery store. He was able to and did go up and down steps in delivering groceries in the neighborhood of his store.
Plaintiff fell on the landing between the first and second floors of defendant's store. On each side of this landing, a mezzanine floor or balcony extended north and south on a level about seven inches above it. This balcony, except for part left open for customers' passageway to the second floor, was used for offices. There was a wide stairway from the first floor to this landing, located in the front central part of the balcony. It had handrails on each side and also a handrail in the center. On reaching this landing, one could continue his ascent to the second floor by turning, either to his left (south), or to his right (north). After making a quarter (right angle) turn either to the left or the right one would then ascend the additional height of about seven inches to the level of the balcony floor. He would then make another quarter (right angle) turn to his right (if he took the north or righthand way from the landing), or otherwise to his left, and ascend one of the two flanking stairways leading in an easterly direction from the balcony floor to the second floor. One making the first quarter turn to the left would make the first ascent of about seven inches from the landing to the balcony floor on an inclined part of the floor called a gradient. One turning to the right would make that ascent by a step. Thus the landing also served as the central part of the balcony floor but was depressed below the level of that floor on each side, and in the wall at the back of the landing there was a cashier's window. The step on the north side of the landing did not run due east and west, but ran diagonally from the newel post of the stairway on the east (front) side to the wall on the west (back) side of the balcony. The distance north and south across the east (front) side of...
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